COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00264-CR
RUBEN DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
After the trial court denied Appellant Ruben Dominguez’s motion to
suppress evidence, Appellant entered his plea of guilty to the murder of Jasmine
Payne with a firearm, and the jury assessed punishment at fifty-five years’
confinement. The trial court sentenced Appellant accordingly. He appeals the
denial of his motion to suppress the evidence acquired as a result of the search
warrant for evidence located in the house he shared with his parents and his
1 See Tex. R. App. P. 47.4. brother, Jose. Because we hold that the trial court committed no reversible error,
we affirm the trial court’s judgment.
On February 13, 2008, Appellant and Henry Venegas went to a store
located next to the Durango Body Shop. When they stopped near the store, a
man approached them and tried to sell them a nine-millimeter firearm. Appellant
was interested in buying another gun, so he showed the man his own Glock nine-
millimeter handgun to see if the gun the man had was the same. During the
conversation, Appellant and Venegas remained in Appellant’s vehicle.
Appellant handed his Glock to the man for his inspection, but after the man
started “getting mad and aggressive,” Appellant asked for his gun back.
Appellant opened his car door and began to get out of the car, but the man shut
the car door and ran away with Appellant’s gun. Appellant got out of the car and
ran after him but turned back after the man ran to a house from which a number
of people emerged. Later that night, Appellant went to the home of Ader
Sotomayor, who worked at the body shop, and told Sotomayor about what had
happened, describing the man to him. From Appellant’s description, Sotomayor
identified the man as Payne. Sotomayor told Appellant that Payne was “always
around that area” where the body shop was located.
The next day, Sotomayor called Appellant when he saw Payne near the
shop. Appellant arrived, confronted Payne, and, after arguing with him, shot him
with a .380 caliber pistol. Appellant testified that Payne had threatened to shoot
him with the Glock that he had taken from Appellant and then began to reach for
2 something behind his back. After shooting Payne, Appellant drove to Venegas’s
house and asked him to dispose of the .380 caliber pistol.
Venegas put the pistol in a dresser. After Appellant’s sister informed him
of Appellant’s arrest and told him to get rid of the gun, Venegas wrapped the gun
in a sock and hid it underneath an abandoned house. The police later came to
Venegas’s house and told him that they knew he had the gun, and Venegas took
them to where he had hidden it.
The police applied for a search warrant, and Fort Worth Detective F. Serra
III executed a supporting affidavit. In the affidavit, Serra described his interview
with Sotomayor and his identification of Appellant. The affidavit states that
Sotomayor had said that “Jose Dominguez” told him that Payne had stolen his
gun. The affidavit also states that Sotomayor also said that this person’s
nickname was “Sito” and that Sito had dated his wife’s cousin. An officer from
the gang unit provided Serra with a picture of Appellant, which showed that
Appellant had a tattoo on one wrist with the word “Sito.” Sotomayor identified
Appellant from a photospread and identified him as Sito. Serra concluded his
affidavit with the following statements:
14. Your affiant obtained an arrest warrant for the suspect and he was taken into custody by Fort Worth Fugitive Officers at 2809 Berryhill where he resides with his parents.
15. Your affiant has reason to believe that the suspect may have concealed the suspect weapon and other evidence inside his residence.
3 Officers executed the search warrant and found the magazine for a Glock
nine-millimeter in Appellant’s bedroom. The door to his bedroom had the word
“Sito” on it.
Appellant filed a motion to suppress all evidence seized as a result of his
arrest and the search of his home. Appellant argued that the search warrant was
illegally issued because the supporting affidavit did not reflect sufficient probable
cause. At a pretrial hearing, Appellant argued that the affidavit was conclusory
and did not show probable cause and that Serra gave “no facts or circumstances
within his knowledge that would support a reason . . . as to why he believes that
the suspect may have concealed the weapon or other ammunition.” The trial
court stated that it had been concerned about the conclusory nature of paragraph
15 of the affidavit, but after having read Massey v. State,2 and considering the
totality of the affidavit, had decided to deny the motion to suppress.
This case raises several issues. The warrant refers not to Appellant but to
his brother, Jose Dominguez, as the suspect. All information in the supporting
affidavit refers to Jose, not to Appellant. The initial question, then, is whether
Appellant has standing to challenge the sufficiency of the affidavit supporting the
warrant that authorized the search. Although the issue of standing was not
raised below, we may address the issue and analyze standing, even though it is
2 933 S.W.2d 141 (Tex. Crim. App. 1996).
4 not raised by either party, as part of the Fourth Amendment claim presented.3 It
was uncontested that the residence searched pursuant to the warrant was
Appellant’s residence and belonged to his parents. Additionally, the supporting
affidavit states that Appellant resided in the house with Jose and their parents. A
person has a reasonable expectation of privacy in his own home, and,
consequently, standing to challenge the search of his residence if the search was
the source of evidence used in the prosecution.4 We hold that because Appellant
had a reasonable expectation of privacy in his home, he had standing to
challenge the search of the residence he shared with his family even though he
is not the named suspect in the warrant.5
The affidavit supporting the search is extremely weak. It contains
conclusory statements with no explanations for why the affiant believed that the
items listed as items he expected to find in the home would, indeed, be located
there. Appellant, however, did not identify the evidence that was seized pursuant
to the warrant. He did not indicate, either in his motion to suppress or in his brief,
which specific evidence was seized as a result of the search and used to
prosecute him (or which specific evidence he expected to be admitted into
evidence or used to prosecute him absent his guilty plea).
3 See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). 4 Id. at 59. 5 See id.
5 Relied on by the trial court to uphold the affidavit and warrant, Massey also
stands for the proposition that when a defendant challenges the sufficiency of a
warrant, the defendant must point to specific evidence seized pursuant to the
complained of portion of the warrant or the affidavit and offered into evidence. 6
The Massey court relies on Walthall7 in recognizing that, generally, “only
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00264-CR
RUBEN DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
After the trial court denied Appellant Ruben Dominguez’s motion to
suppress evidence, Appellant entered his plea of guilty to the murder of Jasmine
Payne with a firearm, and the jury assessed punishment at fifty-five years’
confinement. The trial court sentenced Appellant accordingly. He appeals the
denial of his motion to suppress the evidence acquired as a result of the search
warrant for evidence located in the house he shared with his parents and his
1 See Tex. R. App. P. 47.4. brother, Jose. Because we hold that the trial court committed no reversible error,
we affirm the trial court’s judgment.
On February 13, 2008, Appellant and Henry Venegas went to a store
located next to the Durango Body Shop. When they stopped near the store, a
man approached them and tried to sell them a nine-millimeter firearm. Appellant
was interested in buying another gun, so he showed the man his own Glock nine-
millimeter handgun to see if the gun the man had was the same. During the
conversation, Appellant and Venegas remained in Appellant’s vehicle.
Appellant handed his Glock to the man for his inspection, but after the man
started “getting mad and aggressive,” Appellant asked for his gun back.
Appellant opened his car door and began to get out of the car, but the man shut
the car door and ran away with Appellant’s gun. Appellant got out of the car and
ran after him but turned back after the man ran to a house from which a number
of people emerged. Later that night, Appellant went to the home of Ader
Sotomayor, who worked at the body shop, and told Sotomayor about what had
happened, describing the man to him. From Appellant’s description, Sotomayor
identified the man as Payne. Sotomayor told Appellant that Payne was “always
around that area” where the body shop was located.
The next day, Sotomayor called Appellant when he saw Payne near the
shop. Appellant arrived, confronted Payne, and, after arguing with him, shot him
with a .380 caliber pistol. Appellant testified that Payne had threatened to shoot
him with the Glock that he had taken from Appellant and then began to reach for
2 something behind his back. After shooting Payne, Appellant drove to Venegas’s
house and asked him to dispose of the .380 caliber pistol.
Venegas put the pistol in a dresser. After Appellant’s sister informed him
of Appellant’s arrest and told him to get rid of the gun, Venegas wrapped the gun
in a sock and hid it underneath an abandoned house. The police later came to
Venegas’s house and told him that they knew he had the gun, and Venegas took
them to where he had hidden it.
The police applied for a search warrant, and Fort Worth Detective F. Serra
III executed a supporting affidavit. In the affidavit, Serra described his interview
with Sotomayor and his identification of Appellant. The affidavit states that
Sotomayor had said that “Jose Dominguez” told him that Payne had stolen his
gun. The affidavit also states that Sotomayor also said that this person’s
nickname was “Sito” and that Sito had dated his wife’s cousin. An officer from
the gang unit provided Serra with a picture of Appellant, which showed that
Appellant had a tattoo on one wrist with the word “Sito.” Sotomayor identified
Appellant from a photospread and identified him as Sito. Serra concluded his
affidavit with the following statements:
14. Your affiant obtained an arrest warrant for the suspect and he was taken into custody by Fort Worth Fugitive Officers at 2809 Berryhill where he resides with his parents.
15. Your affiant has reason to believe that the suspect may have concealed the suspect weapon and other evidence inside his residence.
3 Officers executed the search warrant and found the magazine for a Glock
nine-millimeter in Appellant’s bedroom. The door to his bedroom had the word
“Sito” on it.
Appellant filed a motion to suppress all evidence seized as a result of his
arrest and the search of his home. Appellant argued that the search warrant was
illegally issued because the supporting affidavit did not reflect sufficient probable
cause. At a pretrial hearing, Appellant argued that the affidavit was conclusory
and did not show probable cause and that Serra gave “no facts or circumstances
within his knowledge that would support a reason . . . as to why he believes that
the suspect may have concealed the weapon or other ammunition.” The trial
court stated that it had been concerned about the conclusory nature of paragraph
15 of the affidavit, but after having read Massey v. State,2 and considering the
totality of the affidavit, had decided to deny the motion to suppress.
This case raises several issues. The warrant refers not to Appellant but to
his brother, Jose Dominguez, as the suspect. All information in the supporting
affidavit refers to Jose, not to Appellant. The initial question, then, is whether
Appellant has standing to challenge the sufficiency of the affidavit supporting the
warrant that authorized the search. Although the issue of standing was not
raised below, we may address the issue and analyze standing, even though it is
2 933 S.W.2d 141 (Tex. Crim. App. 1996).
4 not raised by either party, as part of the Fourth Amendment claim presented.3 It
was uncontested that the residence searched pursuant to the warrant was
Appellant’s residence and belonged to his parents. Additionally, the supporting
affidavit states that Appellant resided in the house with Jose and their parents. A
person has a reasonable expectation of privacy in his own home, and,
consequently, standing to challenge the search of his residence if the search was
the source of evidence used in the prosecution.4 We hold that because Appellant
had a reasonable expectation of privacy in his home, he had standing to
challenge the search of the residence he shared with his family even though he
is not the named suspect in the warrant.5
The affidavit supporting the search is extremely weak. It contains
conclusory statements with no explanations for why the affiant believed that the
items listed as items he expected to find in the home would, indeed, be located
there. Appellant, however, did not identify the evidence that was seized pursuant
to the warrant. He did not indicate, either in his motion to suppress or in his brief,
which specific evidence was seized as a result of the search and used to
prosecute him (or which specific evidence he expected to be admitted into
evidence or used to prosecute him absent his guilty plea).
3 See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). 4 Id. at 59. 5 See id.
5 Relied on by the trial court to uphold the affidavit and warrant, Massey also
stands for the proposition that when a defendant challenges the sufficiency of a
warrant, the defendant must point to specific evidence seized pursuant to the
complained of portion of the warrant or the affidavit and offered into evidence. 6
The Massey court relies on Walthall7 in recognizing that, generally, “only
evidence seized pursuant to offending portions of a warrant need be
suppressed.”8 The Massey court then states, “It follows that when complaining of
invalid portions of a search warrant, the defendant must identify the evidence
seized pursuant to the allegedly invalid portions of the warrant.”9
Although Appellant was ably represented by counsel at trial and on appeal,
and although Appellant has filed an excellent brief on appeal, we cannot glean
from either the motion to suppress or the appellate brief what specific evidence
he complains was illegally seized. The firearm in question was not seized at his
home. The magazine seized at his house was for the nine-millimeter Glock, not
for the weapon with which Payne was shot. The name Sito was on his bedroom
door, but it was also tattooed on his wrist. Appellant does not explain to us what
6 Massey, 933 S.W.2d at 148. 7 Walthall v. State, 594 S.W.2d 74, 79 (Tex. Crim. App. 1980). 8 Massey, 933 S.W.2d at 148 (citing Walthall, 594 S.W.2d at 80). 9 Id.
6 evidence was seized that prejudiced him, how it prejudiced him, or how it
influenced his sentence.
We therefore overrule Appellant’s sole point on appeal and affirm the trial
court’s judgment.
LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
WALKER and GABRIEL, JJ. concur without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 12, 2011